How the 2020 elections will shape the federal privacy debate

The 116th Congress opened with great energy and promise for federal privacy legislation across both houses and parties. By the end of 2019, though, Senate Commerce Committee Chairman Roger Wicker (R-MS) and Ranking Member Maria Cantwell (D-WA) each released separate proposals, respectively the draft US Consumer Data Privacy Act (USCDPA) and the Consumer Online Privacy Rights Act (COPRA). Despite sharp differences when it came to federal preemption of state privacy laws and individual rights to sue, these bills showed promising agreement on significant issues, including data minimization, individual privacy rights, transparency, and discriminatory uses of personal data In the end, these efforts fell short. The pandemic took up most of the legislative energy and made it more difficult to overcome partisan polarization.

As for whether USCDPA or COPRA will emerge as the main vehicle for privacy legislation in 2021, that will depend on who chairs the Senate Commerce Committee come January. If Republicans hang on to the Senate next year, the SAFE DATA Act will serve as a focal point for negotiations with Senate and House Democrats—and potentially with the White House. But if Democrats take the Senate, COPRA will be the focal point. Whoever sits in the White House will also play into the prospects for privacy legislation. The process will also be influenced by the result of California’s Proposition 24 ballot initiative, which could harden preemption positions by expanding the California Consumer Privacy Act, and by what could be a federal legislative agenda packed with initiatives to address economic recovery, pandemic management, and other crisis responses. While the need for privacy legislation will remain fundamentally the same in 2021, the political situation could look vastly different.